A G E N D A MEETING - Zoning Sub-Committee Manager's Conference Room

A G E N D A MEETING - Zoning Sub-Committee Manager's Conference Room Tuesday, November 28, 2017 1:00 PM Administration 17-158-01 A new Ordinance to regulate Tobacco Retailers through a Tobacco Retailer License 17-145-01 An Emergency Ordinance Pertaining to the Cultivation of Marijuana Visible from the Street 17-166-01 Chapter 293: Odor Nuisance Control and Abatement Airport Public Works Human Resources Finance Police Department Fire Department Parks & Recreation Planning Department 1

Memo Number: To: From: Zoning Sub-Committee Ian Houseal, Community Development Date: 2017-11-28 13:00:00 Subject: A new Ordinance to regulate Tobacco Retailers through a Tobacco Retailer License RECOMMENDATION This item needs review by the Zoning Sub Committee. Background Information: ATTACHMENTS Memo - Tobacco Retailer License 11-28-17.pdf Ordinance - Tobacco Retailer License 11-20-17.pdf 2

City of Sanford, Maine Office of Community Development 919 MAIN STREET, SANFORD, MAINE 04073 (207) 608-4101 MEMORANDUM TO: FROM: Zoning Sub Committee Ian Houseal, Community Development Director DATE: November 28, 2017 RE: An Ordinance to Regulate Tobacco Retailers through Business Licensing This items needs review by the Zoning Sub-Committee. This item was initiated and then reviewed by the Marijuana Task Force and developed in partnership with the Maine Partners for Healthier Communities using their model Tobacco Retailer License Ordinance. The purpose of the item is to regulate tobacco retailers and for the additional purpose of regulating paraphernalia that might be used to ingest or smoke tobacco or marijuana. State Law explicitly allows the regulation of tobacco products through licensing and tobacco products include devices that might be used to ingest or smoke marijuana. 3

AN ORDINANCE REQUIRING THE LICENSING OF TOBACCO RETAILERS FINDINGS It is found that licensing tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards to protect the health, safety and welfare of residents and especially children from exposure to tobacco product marketing and therefore dependence, illnesses, and death associated with tobacco use. Additionally: A. A requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute tobacco products to adults. B. There is a substantial interest in discouraging the purchase of tobacco products by persons under the age of 21 minors. AUTHORITY Commented [CC1]: May want to delete to avoid any first amendment legal arguments by mentioning marketing. If tobacco sales won t be limited to adult only retail stores, it is unlikely licensing will impact children s exposure to tobacco product marketing. Commented [CC2]: May want to reference persons under 21 rather than minors This ordinance is adopted pursuant to 30-A M.R.S.A 3001 and the City s Home Rule Powers as provided for in Article VII-A of the Maine Constitution and 30-A M.R.S.A 2101 et seq. and 22 M.R.S.A 1556. DEFINITIONS In general, all words, phrases, and terms used in this article shall have their customary and usual meanings; as used in this article, the following words, phrases, and terms shall have the meaning indicated. Tobacco Specialty Store. A retail business in which at least 20% or more of floor or display area is devoted to tobacco products or 67% of the business s gross revenue from the last calendar year was derived from the sale of tobacco products. Tobacco Retailer. A retail business within the City of Sanford that sells tobacco products for personal consumption. Tobacco Product. Any product that is made from or derived from tobacco and is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled, or ingested by any other means, including, but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, snus, or an electronic smoking device. Tobacco product includes any component or accessory used in the consumption or accessory used in the consumption of a tobacco product, such as filters, rolling papers, pipes or liquids used in electronic smoking devices. Tobacco product does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.Any form of tobacco and any material or device that may be used for the smoking, chewing, vaporizing, or other form of tobacco consumption, including, but not limited to cigarette papers, pipes, electronic pipes, carburetion masks, vaporizers, or parts thereof such as so called roach clips, screens, or other replacement parts sold separately for mechanical or electronic devices which can be used for tobacco consumption. Commented [IPH3]: No need for adults only license, in my opinion at this time. Commented [CC4]: Here is our recommended definition "Tobacco product" means any product that is made from or derived from tobacco and is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled or ingested by any other means, including, but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, snus, or an electronic smoking device. Tobacco product includes any component or accessory used in the consumption of a tobacco product, such as filters, rolling papers, pipes or liquids used in electronic smoking devices. Tobacco product does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act. APPLICABILITY 4

The provisions of this article apply to tobacco retailers within the City of Sanford. LICENSE REQUIRED A tobacco retailer license under the terms of this article is required and no person shall offer for sale, sell, furnish, display, or advertise for tobacco products unless a tobacco retailer has a license under the terms of this article. Any person carrying out such activity without a license is in violation of these provisions. Failure to comply with any of these requirements shall be deemed in violation of this article and is adequate grounds for the denial, revocation, or suspension of a tobacco retailer license. DURATION OF LICENSE A Tobacco Retailer License is valid for one year beginning January 1 and expiring December 31. On or before December 31, tobacco retailer licenses shall be renewed for the successive year. FEE A license may be issued to a tobacco retailer after the annual fee required has been paid through the City Clerk s Office. The fee for a tobacco retailer license is $25. APPLICATION FOR LICENSE A license application shall be made to the City Clerk on a form furnished by the City Clerk for such purpose and shall include the following information: (1) The name of the applicant, business name, and contact information including name, mailing address, phone number and email address; (2) The street address of the property, parcel identification code or map and lot for the property; (3) Copy of a valid State of Maine Retailer License; and (4) Completed checklist of tobacco retailer prohibitions and requirements. ISSUANCE OF LICENSES; CONDITIONS Commented [CC5]: Way too low. The fee should be high enough to cover enforcement of the ordinance. Commented [IPH6]: Could be a one pager restating standards in this ordinance The City Clerk shall have the authority to issue all licenses pursuant to this article. A license pursuant to this article may only be issued to the person named and for the address provided on the approved license application. Only one license may be issued for each address and person named on the approved license application. No transfer of a license is allowed between the names or addresses; any change of ownership or retail address requires a new license. The following conditions shall be met in order to be issued a tobacco retailer license: (1) The licensee shall have provided all application information and have paid the required license fee. (2) The licensee and the licensee place of business shall not have property taxes, business taxes, or other fees, charges, penalties, or interest owing to the City. A tobacco retailer license shall be displayed prominently at the location where tobacco products are sold to as to be readily visible to customers. 5

CERTAIN LOCATIONS PROHIBITED FROM OBTAINING A LICENSE No tobacco retailer license may be issued to any seller of tobacco products that is not in a fixed, permanent location; mobile vending of tobacco products is prohibited With the exception of the first year subsequent to effective date of this ordinance, nno tobacco retailer license may be issued to any business location within 500 feet of a school or City park property line. Tobacco retailers which are in existence as of the effective date of this article and maintain a tobacco retailer license in good standing are exempt from the requirement that a tobacco retailer license may not be issued to a business located within 500 feet of a school or City park property line. TOBACCO PRODUCT SALE; FURNISHING; ACCESS STANDARDS Commented [IPH7]: This makes sense to discourage tobacco product use in parks; however, there are current retailers closer than this distance. Commented [CC8R7]: Could grandfather in existing retailers and also restrict retailers from being within 500 feet (or further) of another retailer. Do you want to prohibit pharmacies from selling tobacco? No licensee, or employee or agent of such licensee, shall sell, furnish, or allow access to tobacco products to persons who appears to be under the age of 2730 years without first examining the identification of the person to confirm the person is at least the minimum age of 21. TOBACCO PRODUCT DISPLAYS STANDARDS Self-service tobacco product displays are prohibited. Tobacco products may not be displayed in exterior windows. For customer areas or retail stores where persons under the age of 21: (1) May be present, tobacco products must be in locked and shrouded cabinets or behind the sale counter accessible only with store employee assistance. (2) May not be present, tobacco products must be in locked cabinets may be in locked, but unshrouded cabinets or behind the sale counter accessible only with store employee assistance. TOBACCO PRODUCT ADVERTISING STANDARDS Advertisements exterior to the building advertising tobacco products: (1) May only be on displayed on permanent signs. (2) Shall not be displayed on more than one sign. (3) May not be displayed on electronic displays. (4)(1) May not be displayed on temporary signs. Commented [CC9]: This may also cause legal issues with the first amendment. This came up in Havestraw NY where they wanted to have all products covered and provide potential customers upon request with a menu of products so no products were visible to customers. It didn t fly. I d like to have TCLC take another look at this and get their opinion. Commented [CC10]: may be locked? This section seems odd to me. Is this for businesses that never have persons under 21 present or just when persons under 21 aren t present? I think this needs some clarification. Advertisements placed in windows advertising tobacco products: (1) Shall not exceed 15% of the total window area. (2) Shall not face the interior of the building. Advertisements interior to the building advertising tobacco products: (1) May not be within 10 feet of products that minors generally purchase. 6

(2) May not be within 10 feet of a point-of-sale station. VIOLATIONS AND PENALTIES Commented [CC11]: This entire section will face first amendment challenges. In addition, the same requirements would have to apply to all advertising, not just tobacco advertising. Any person who violates any provision of this article or the terms of the license may be penalized in the following manner: A. Temporary Suspension. The Code Enforcement Officer or Police Department, with prior approval of the City Manager or his/her designee, is authorized to immediately and temporarily suspend any license until such time the requirements of the license are met. The City Manager or his/her designee, shall determine if the licensed premises has not met the requirements of the license. B. Revocation. The Code Enforcement Officer or Police Department, with prior approval of the City Manager or his/her designee, is authorized to immediately revoke any license. The City Manager or his/her designee, shall determine if the licensed premises has not met the requirements of the license. C. Unlicensed Tobacco Retailer. Any person offering for sale, selling, furnishing, displaying, or advertising tobacco products failing to apply for a tobacco retailer license and pay the required fee shall be in violation of this article and such violation is a civil penalty enforced by the Police Department and subject to a fine in the amount of $100 in addition to any other fines for violating this article and the fee for licensing the tobacco retailer. D. Civil Penalties. In addition to any other fines or penalties for violating any provisions of this article or the terms of the license, violation of this article is a civil penalty enforced by the Police Department. In any such proceeding, the City may order that the licensee or unlicensed tobacco retailer abate any violations, pay a penalty between $100 and $2,500 per violation, per day, and pay the court costs, attorneys and expert witness fees incurred by the City. Commented [CC12]: For how long? Commented [CC13]: Is this determined before or after the license has been suspended? Commented [CC14]: Is this before or after the license has been revoked? Commented [CC15]: This is incredible low. Suggest fees and fines cover all enforcement of the ordinance. Commented [CC16]: This is a broad range. At what point is license suspension/revocation triggered? APPEALS The Zoning Board of Appeals shall act as the Tobacco Retailer License Board of Appeals in order to hear appeals of orders, decisions, or determinations made relative to application and interpretations of this code. Appeals to the Zoning Board of Appeals shall be submitted as otherwise set forth in City Code Chapter 280, Zoning, regarding administrative appeals, subject to the payment of any fees as may be determined by the municipal officers from time to time. SEVERABILITY If any clause, sentence, paragraph, section, article, or part of this ordinance or of any ordinance included in this Code or through supplementation shall be adjudged by any court of competent jurisdiction to be invalid, such judgement shall not affect impair or invalidate the remainder therefor but shall be confined in its operation to the clause, sentence, paragraph, section, article, or part therefore directly involved in the controversy in which such judgement shall have been rendered. 7

Memo Number: To: From: Zoning Sub-Committee Ian Houseal, Community Development Date: 2017-11-28 13:00:00 Subject: An Emergency Ordinance Pertaining to the Cultivation of Marijuana Visible from the Street RECOMMENDATION Pursuant to Section 214 and 214.1 a "to meet a public emergency affecting the health, safety, or welfare of the City, the City Council may adopt one or more emergency ordinances..." and "shall stand repealed as of the 91st day following the date of its adoption, but this shall not prevent the re-enactment of the ordinance in the manner specified in this section if the emergency still exists." The emergency was put in place as an emergency and temporary measure to protect the health, safety, and welfare of the City due to a lack of marijuana enforcement by the State and given the flux of the State Law and Rules surrounding marijuana cultivation. Legal Review Status: Complete ATTACHMENTS Order_17-132.07_EMERGENCY_Ordinance_-_Marijuana_Street_Visibility.pdf 8

AN EMERGENCY ORDINANCE PERTAINING TO THE CULTIVATION OF MARIJUANA VISIBLE FROM THE STREET. ADOPTED 9/5/2017 CITY COUNCIL ORDER #: 17-132.07 FINDINGS It has been found that inconsistent, competing, and undeveloped State Laws regarding the enforcement of medical marijuana cultivation and recreational marijuana cultivation constitutes an emergency affecting the health, safety, and welfare of the citizens of the City of Sanford. PURPOSE To protect the health, safety, and welfare of the public, the purpose of this emergency ordinance is to allow local zoning enforcement of marijuana cultivation until such time that the State institutes appropriate and enforceable standards with regard to medical marijuana and recreational marijuana cultivation. AUTHORITY This ordinance is adopted pursuant to 30-A M.R.S.A 3001 and the City s Home Rule Powers as provided for in Article VII-A of the Maine Constitution and 30-A M.R.S.A 2101 et seq. APPLICABILITY This ordinance applies to the cultivation of medical marijuana by qualifying patients or caregivers and the cultivation of recreation marijuana for personal use. REQUIREMENTS Cultivation of marijuana must be entirely screened from common visual observation from the street. Outdoor cultivation of marijuana must be entirely screened from common visual observation from the street by a solid fence high enough to conceal the marijuana cultivation from the street. The fence must be a minimum of 6 feet in height. Outdoor cultivation of marijuana must be set back from the street a minimum of 25 feet. ENFORCEMENT It shall be the duty of the Code Enforcement Officer or their agent to enforce the provisions of this ordinance. If the Code Enforcement Officer or their agent shall find that any provision of this ordinance is being violated, they shall notify in writing the person responsible for such violation, indicating the nature of the violation and ordering the action necessary to correct it. They shall order discontinuance of illegal use of buildings, structures, or additions or work being done or shall take any other action authorized by this ordinance to ensure compliance with or to prevent violation of its provisions. The Code Enforcement Officer is hereby authorized to institute or cause to be instituted, in the name of the City, any and all actions, legal or equitable, that may be appropriate or necessary for the enforcement of this ordinance; provided, however, that this section shall not prevent any person entitled to equitable relief from enjoining any act contrary to the provisions of this ordinance. 9

AN EMERGENCY ORDINANCE PERTAINING TO THE CULTIVATION OF MARIJUANA VISIBLE FROM THE STREET. ADOPTED 9/5/2017 CITY COUNCIL ORDER #: 17-132.07 The Code Enforcement Officer, in his or her discretion, where a violation of this ordinance has been brought to his or her attention, may so advise the party in violation, in writing, and may give such violators permission to continue for a period not exceeding ten (10) days, provided that such violators intend and do appeal to the Zoning Board of Appeals. Failure to perfect or commence such appeal within thirty (30) days will then subject the violator to prosecution under this section. VIOLATIONS AND PENALTIES Any person, firm, or corporation, being the owner of or having control or use of any building or premises, who or which violates any of the provisions of this ordinance shall be fined not less than onehundred dollars ($100) nor more than twenty-five-hundred dollars ($2,500) for a specific violation, and other remedies, injunctive relief, and costs as set forth in accordance with 30-A M.R.S.A. 4452. Each day during which a violation of said code continues, 10 days after notification by the code enforcement officer, shall constitute a separate offense. APPEALS The Zoning Board of Appeals shall act as the Board of Appeals in order to hear appeals of orders, decisions, or determinations made relative to application and interpretations of this code. Appeals to the Zoning Board of Appeals shall be submitted as otherwise set forth in City Land Use Code regarding administrative appeals, subject to the payment of any fees as may be determined by the municipal officers from time to time. EXPIRATION This emergency ordinance shall stand repealed as of the 91 st day following the date of its adoption, but this shall not prevent the re-enactment of the ordinance if the emergency still exists. SEVERABILITY If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions. 10

Memo Number: To: From: Zoning Sub-Committee Sherry Lord, Administration Date: 2017-11-28 13:00:00 Subject: Chapter 293: Odor Nuisance Control and Abatement RECOMMENDATION Review by the Zoning Sub-Committee Sub-Committee or Board Recommendation: recommended sub-committee recommendation Administrative or Departmental Review : City Planner will have documentation to provide. ATTACHMENTS 11